Asyl och rätten att definiera sexualitet

The purpose of this paper is to examine the constructions of sexuality, which are produced when judgments concerning asylum are made, based on an asylum seeker’s sexual orientation. The question formulations are the following: Which constructions of sexuality are produced when necessary condition, fear of persecution due to sexual orientation, is applied in judgments regarding refugee status? Furthermore, how constructions of sexuality differ in the judgments where the asylum seeker has been consented and rejected is investigated. The empirical material consists of 13 judgments, which were announced between the years 2009-2013 by the Migration court. A critical discourse analysis is applied in order to answer the question formulations. By examining the linguistic representations in these judgments, the aim is to visualize the statements and positions that are made possible within the discourse. The discourse analysis is mainly based on a queer theoretical perspective with selected concepts from Foucault. The concepts that the analysis is based on are the following; object and subject positions, heteronormativity, performativity and the heterosexual matrix. The results show that constructions of sexuality within the legal discourse, are based on heteronormative perceptions around sexuality. In 8 of 13 judgments, the asylum applicant’s sexual orientation is questioned and they are made to prove their homosexuality. Homosexuality is not given legitimacy within the discourse when the asylum seeker has given descriptions of a heterosexual life according to the judge definition, such as when the person has been in relationships with the opposite sex and have children. A bisexual practice is therefore, not given any legitimacy. Homosexuality is given legitimacy only when the asylum seeker is living in a homosexual relationship. In addition, homosexuality is given credibility when the narrative includes descriptions of homosexuality as an insight involving strong emotions. The result also shows how the asylum seeker is requested to hide their homosexuality in cases where the sexual orientation is criminalized in the person’s home country. In the judgments where the asylum seeker has been rejected, there are constructions of sexuality, which accept the prevailing heteronormativity as well as conceal resistance against oppression. In the judgments in which the asylum seeker has been given refugee status, the definition of sexuality is set in a larger context focusing on the social structures prevalent in the asylum seeker’s home country